Five for Friday #163

Welcome to Five for Friday!

Impeachment.  Treason.  A flawed Electoral College.  Special prosecutors investigating lawyers. Lawyers not treating others with respect and courtesy.

I’ve got a little bit of each for you in this week’s column.  And the most recent event I’m going to reference took place 46 years ago!  The more things change . . . yada, yada, yada.

Digging for topics this morning, a few tidbits interested me. On this day in history:

  • John Jay died (1829)
  • Archibald Cox was born (1912)
  • The Watergate hearings began (1973)

Thinking about each, I was struck by how we tend to think that our moment in time is of greater import or weightier than any prior moment.

Nope.  We’ve always had our moments.  Lawyers included.

I’ve referenced Watergate, both in this blog and at CLEs. It was a seminal event in legal ethics.  That’s NOT a political statement. In my book, no party or philosophy lacks members or adherents unable to conform themselves to the Rules of Professional Conduct.  Indeed, when it comes to presidents who’ve lost their law licenses, the major parties stand tied 1-1.

Let’s hope that’s a tie that’s never broken.

Rather, Watergate’s relation to and impact on legal ethics is fact.  At least 14 lawyers tied to the Nixon administration or reelection campaign eventually had disciplinary sanctions imposed against their law licenses: 8 disbarred, 6 suspended.  As the ABA Journal wrote here, the fallout included significant changes to the law of legal ethics and the rules governing lawyers.

In short, Watergate was a Moment.

Now, speaking of ties . . .

John Jay, most of you know, was the first Chief Justice of the United States Supreme Court.  Prior to this morning, I didn’t know much about him.  After learning that today is the anniversary of his death, I started researching him.  One link led to another and, next thing I knew, I found myself reading about a lawyer who had more than his fair share of moments: Aaron Burr.

In Jay’s day, the Electoral College was kind of a mess.  To wit: the presidential election of 1800.  Two lawyers tied.  Thomas Jefferson and Aaron Burr each received 73 electoral votes. As if a presidential tie wasn’t a “moment” in and of itself, Jefferson & Burr were running mates!  To tell the story would swallow this post.  You can read about it here.

(Aside: anyone who watches VEEP will know how we break ties for the presidency. Amazing that I learned about the 12th Amendment to the U.S. Constitution from an HBO sitcom.)

Image result for selina meyers veep

Anyhow, Aaron Burr fascinates me.

  • 1800: Burr ran as Jefferson’s vice-president, and apparently refused to concede when the two tied in the Electoral College.
  • 1801:  the tie was broken in Jefferson’s favor, with Burr’s long-time political foe, Alexander Hamilton, playing a key role in breaking it.
  • 1804: Burr shot & killed Hamilton in a duel.
  • 1805: as vice-president, Burr presided over the impeachment trial of Supreme Court Justice Samuel Chase.  Chase was acquitted.
  • 1807: Burr was arrested & charged with Treason.  He was acquitted.

Those are Moments!!

Alas, this post doesn’t really have a point.  I do, however, have a thought.

There are a lot of lawyers out there winning their 3-feet of influence, saving star fish, and being nice.  Are such things little moments?  Yes.  But keep up the good work.

Because, at the moment, we need more little moments.

Onto the quiz!



  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

When a lawyer holds funds in which two or more persons claim interests, a rule specifically requires the lawyer:

  • A.   to resolve the dispute;
  • B.   to keep the funds separate until the dispute is resolved;
  • C.   to promptly distribute all portions that are not in dispute;
  • D.   B & C.

Question 2

Speaking of Watergate, if you’re at a CLE and hear me talking about a lawyer’s duty “to go up the ladder,” I’m most likely talking about a lawyer who represents:

  • A.  an organization.
  • B.  both the insured and an insurance company in a civil case.
  • C.  a child.
  • D.  a client whose deadline to appeal is about to run, but who has not instructed the lawyer whether to file the appeal.

Question 3

Consider the following:

  • a reasonable belief that the lawyer will be able to provide competent & diligent representation to each affected client;
  • no assertion of a claim by one client against another represented by the same lawyer;
  • informed consent, confirmed in writing.

By rule, each of the 3 is relevant to what general question?

Question 4

Is there a rule that specifcially addresses a lawyer’s ethical duties when serving as an arbitrator, mediator, or in any other such capacity to assist two or more persons who are not clients to resolve a dispute?

  • A.   No.
  • B.   No.  The Code of Judicial Conduct applies.
  • C.   Yes.  There’s a rule that applies to so-called “third-party neutrals.”
  • D.   Yes.  There’s a rule that applies to so-called “third-party neutrals” and a comment to the rule indicates that lawyers serving as such may also be subject to other codes of ethics.

Question 5

I’ve often spoken on lawyer’s duty to provide competent advice related to a client’s preservation of electronically stored information that might have potential evidentiary value.

Recently, one of the world’s most famous athletes was named as a defendant in a wrongful death suit.  The athlete owns a restaurant that is also a defendant.  Central to the case is an allegation that the restaurant over-served an employee who drank at the bar after his shift, drove, and died in a car accident after leaving.

This week, the plaintiff’s lawyers accused the restaurant of destroying video of the decedent drinking at the bar in the hours prior to the fatal crash.

Who is the athlete?


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